Public Officers: Removal for Misconduct Occurring Prior to Resignation and Re-Election

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RECENT IMPORTANT DECISIONS 4 1 9

Master and Servant — Relation op Employer and Employee. — Defendant
was the owner of an office building and operated an elevator for the benefit
of the occupants and the public generally. Plaintiff's intestate, a stenog-
rapher in the employ of the defendant company, whose offices were on the
fourth floor, was killed while riding to work on the elevator, through the
negligence of the operator. Held, that plaintiff's intestate was a passenger at
the time of the accident and the defendant owed her the same duty as a
stranger rightfully using the elevator. Putnam v. Pacific Monthly Co. (Ore.
1913), 136 Pac. 835.

The precise question as to the relation existing between an elevator own-
er and an office employee, invited to ride to work, has been of infrequent
occurrence. In McDonough v. Lanpher, 55 Minn. 501, it was held that em-
ployees permitted to ride in their employer's elevator to and from their
places of work are still employees while so riding, and not passengers. See
note to McDonough v. Lanpher in 43 Am. St. Rep. 541 ; Wise v. Ackerman,
76 Md. 375; Gilshannon v. Stony Brook R. R. Co., 10 Cush. 228; Russell v.
Hudson River R. R. Co., 17 N. Y. 134; Walsh v. Cullen, 235 111. 91. The
principal case seems to be supported, in theory at least, by Thompson v.
Northern Hotel Co., 256 III. 77 (which ignores the reasoning of the same
court in Walsh v. Cullen, supra.) ; Gillenwater v. Madison etc. R. R. Co., 5
Ind. 339; State v. Western Md. R. R. Co., 63 Md. 433. The prevailing opin-
ion apparently was based on the fact that the plaintiff was riding on the ele-
vator before the time set for the commencement of her daily work. This
distinction was vigorously assailed in a dissenting opinion, in which two
of the judges concurred, and which seems to be the result of more logical
reasoning.

Public Oeficers— Removal for Misconduct Occurring Prior to Resig-
nation AND Re-ElECTion. — ^When proceedings were about to be commenced
for the removal of a mayor for alleged intoxication he immediately resigned,
whereupon the city council re-elected him to fill the vacancy so caused. Af-
ter he had been duly installed under the new election, an action was begun
to oust him on account of the misconduct occurring prior to his resignation.
Held, such resignation and re-election were no defence to the subsequent
proceedings. State ex rel. Cosson v. Baughn (Iowa 1913), 143 N. W. iioo.

Search has failed to disclose very many cases upon this particular situa-
tion, and such authorities as are to be found are in hopeless conilict. It is
believed, however, that the tendency of the courts in the later cases is in
accord with the principal case. In People v. Ahearn, 196 N. Y. 221, 26 L. R.
A. (N. S.) 1153, it was held by a divided court that one removed from a
municipal office under statutory authority, for misconduct, is not eligible for
re-election for the remainder of the term. See to the same point State v.
Dart, 57 Minn. 261, wherein it is said that "Such removal proceedings are
not merely for the purpose of ousting the person holding the office; they
include a charge that he has forfeited his qualifications for the office for
the remainder of the term." In State of Kansas v. Rose, 74 Kans. 260, 6 h.
R. A. (N. S.) 843 the same rule was applied, although the re-election was
made by the electors of the city themselves, at a special election. Some courts

420 MICHIGAN LAW REVIEW

have gone so far as to hold that misconduct during a preceding terra is
ground for removal. State v. Welsh, 109 Iowa 19; State v. Burgeois, 45 La.
Ann. 1350; Tibbs v. City of Atlanta, 125 Ga. 18. To the contrary are Thurs-
ton V. Clark, 107 Cal. 285; Shuls v. Patton, 131 Mo. App. 628; People v. Wey-
gart, 14 Hun. (N. Y.) 546; State v. Watertown, 9 Wis. 254. The first case
directly in point with the instant case was that of State v. Common Council
of Jersey City, 25 N. J. L. 536 wherein the opposite doctrine was announced.
In that case a member of the council was expelled for receiving bribes and
was re-elected to fill the unexpired term. The court in its opinion said
"When the council expelled him they had exhausted their power. . . . When
the law annexes a disqualification to an office, it does so in express terms.
The coimcil have no power to expel a member for acts committed prior to
his election." To the same general effect see Sped v. Detroit, 98 Mich., 360;
Advisory Opinion of The Florida Supreme Court, 31 Fla. i, 18 L. R. A. 594.
It is submitted that the view taken by the New Jersey court is technically
correct for the reason that the contrary holding is in effect adding a quali-
fication for the particular office in question which is not provided for by
statute. While on principle there is no doubt this qualification should be
added, yet the remedy lies with the legislature; judicial legislation is always
to be deprecated.

Sai,es — Conversion — ^What Constitutes. — Plaintiff delivered furniture to
X, a dealer, not to be put in his place of business, but to be placed in a
storage warehouse; X wrongfully placed the furniture in his place of business
and sold it to the defendant, an innocent purchaser. Held, defendant was
guilty of conversion of property in reselling it after notice of plaintiff's rights.
Davis V. Miller's Auction Rooms Inc., 144 N. Y. S. 672.

It should be noted that the dealer was engaged solely in the retail furni-
ture business and that no facts existed which would put defendant on in-
quiry or arouse his suspicion as to whether the dealer had title or not, yet
he was held guilty of conversion. Although this is an extreme case from the
standpoint of the innocent purchaser, nevertheless it is founded on well set-
tled and sound principles of law and justice. Saltus v. Everett, 20 Wend.
(N. Y.) 267, 32 Am. Dec. 541. Mere possession of chattels by whatever means
acquired, if there be no other evidence or authority to sell, from the true
owner, will not enable the possessor to give good title. McNeil v. Tenth
National Bank, 46 N. Y. 325; Cundy v. Lindsey, 3 App. Cas. 459; Wood v.
Nicols, 21 R. I. 537 ; Leigh v. Mobile & Ohio Ry. Co., 58 Ala. 165 ; Baker v.
Taylor, 54 Minn. 71. The defendant contended that plaintiff gave possession
of the furniture to a dealer, with apparent right to sell, and that therefore
the dealer could give good title to an innocent purchaser. But bare posses-
sion of goods, by one even though he may happen to be a dealer in that class
of goods, does not clothe him with power to dispose of the goods as though
he were owner, or as having authority as agent to sell or pledge the goods,
to the preclusion of the rights of the real owner. Levi v. Booth, 58 Md. 305.
It might be argued that the dealer has more than mere possession and that
he has the indicia of title. This howeyer is not sufficient. That indicia of